Case ID:106506

Maersk Kenya Limited v Murabu Chaka Tsuma [2017] eKLR

Case Metadata

Case Number:

Civil Appeal 209 of 2015

Parties:

Maersk Kenya Limited v Murabu Chaka Tsuma

Date Delivered:

10 Nov 2017

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Judgment

Judge(s):

Milton Stephen Asike-Makhandia, William Ouko, Agnes Kalekye Murgor

Citation:

Maersk Kenya Limited v Murabu Chaka Tsuma [2017] eKLR

Case History:

(Appeal from Ruling and Order of the Employment and Labour Relations Court at Nairobi ((Hellen Wasilwa, J.) delivered 25th May 2015) in

Industrial Cause No. 374 of 2013)

Court Division:

Civil

History Docket No:

Industrial Cause No. 374 of 2013

History Judges:

Hellen Seruya Wasilwa

Case Summary:

Order 50 rule 4 of the Civil Procedure Rules on exclusion of Christmas recess from the computation of time, does not apply to limitation periods provided for under the Limitation of Actions Act.

Maersk Kenya Limited v Murabu Chaka Tsuma

Civil Appeal No 209 of 2015

Court of Appeal at Nairobi

Asike-Makhandia, W Ouko & A K Murgor, JJ A

November 10, 2017

Reported by Beryl A Ikamari

Limitation of Actions

-actions founded on contracts-computation of limitation periods for actions founded on contracts-whether the applicable six years limitation period, under the Limitation of Actions Act, could be extended by exclusion of the Christmas recess period provided for in order 50 rule 4 of the Civil Procedure Rules-Limitation of Actions Act (Cap 22), section 4(1)(a); Civil Procedure Rules 2010, order 50 rule 4.

Statutes

-interpretation of statutory provisions-the running of time for purposes of limitation of actions-actions founded on contracts-whether order 50 rule 4, of the Civil Procedure Rules, could exclude the Christmas recess period from the computation of the six years limitation period applicable to contracts, under the Limitation of Actions Act-Limitation of Actions Act (Cap 22), section 4(1)(a); Civil Procedure Rules 2010, order 50 rule 4.

Statutes

-interpretation of statutory provisions-circumstances under which a party would be precluded from pleading limitation of actions-interpretation of section 39 of the Limitation of Actions Act-existence of a contract not to plead limitation and existence of an estoppel preventing a party from pleading limitation-Limitation of Actions Act (Cap 22,) section 39.

Brief facts

The Appellant employed the Respondent as a Security and Safety Coordinator. The contract stated that the Respondent could be summarily dismissed without the issuance of notice if his conduct justified such dismissal. On September 20, 2006, the Respondent was charged with the offence of stealing contrary to section 275 of the Penal Code in

Criminal Case No 1723 of 2006

. After being suspended from work on September 11, 2005, he was summarily dismissed from employment on November 20, 2006. Subsequently he was cleared of the criminal charges. He instituted the claim on March 21, 2013 seeking reliefs against wrongful dismissal from work by the Appellant.

Before the hearing of the suit began, a preliminary objection was raised by the Appellant. The preliminary objection was based on an assertion that the suit was time barred as it was instituted outside the 3 years’ time limit provided for under section 90 of the Employment Act. In his grounds of opposition, the Respondent argued that the Employment Act 2007 was inapplicable to his employment contract as it was dated September 20, 2005. In response, the Appellant filed another preliminary objection stating that the Respondent's claim was outside the six year limitation period set out in section 4 (1) (a) of the Limitation of Actions Act and it ought to be struck out.

In making its ruling the Employment and Labour Relations Court relied on order 50 rule 4 of the Civil Procedure Rules and excluded the period between the 21

st

day of December in any year and the 13

th

day of January in the following year (both days included) in each year commencing November 20, 2006 to November 19, 2012 totalling 210 days. The Employment and Labour Relations Court excluded that period and concluded that the Respondent would have been time barred if he had filed his claim after June 2013. The preliminary objection was dismissed. The Appellant lodged an appeal against the ruling.

Issues

Whether order 50 rule 4 of the Civil Procedure Rules, which provided for the exclusion of the Christmas recess from the computation of time, was applicable to the provisions of section 4(1)(a) of the Limitation of Actions Act which provided for a six year limitation period for actions founded on contract.

When would section 39 of the Limitation of Actions Act, with respect to an estoppel not to plead limitation, be applicable to a suit?

Held

The cause of action arose on November 20, 2006, when the Respondent was dismissed from work. That was before the enactment of the Employment Act, 2007. The applicable law in computing the applicable limitation period was section 4(1)(a) of the Limitation of Actions Act which provided that actions founded on contract could not be brought after the expiry of six years from the date which the cause of action arose.

Six years computed from a cause of action arising on November 20, 2006 would mean that the suit ought to have been filed latest before November 19, 2012. Instead, the suit was filed on March 21, 2013. However, the Employment and Labour Relations Court applied order 50 rule 4 of the Civil Procedure Rules and excluded the Christmas recess period for each year commencing in the year 2006 until the year 2012 and the effect was that the limitation period was extended by 210 days.

Order 50 rule 4 of the Civil Procedure Rules was applicable to computation of time under the Civil Procedure Rules or in accordance with an order of the Court. The rule did not indicate that it was intended to be applied to fix time limits set by the Limitation of Actions Act which was different from the Civil Procedure Act and the Civil Procedure Rules.

Part III of the Limitation of Actions Act which was titled, “extension of the period of limitation,” set out the manner and the circumstances under which periods of limitation could be extended. That part did not make reference to the Civil Procedure Rules or order 50 rule 4. Without such an enabling power, an order or rule was incapable of augmenting the absolute period of limitation stipulated under an Act of Parliament.

The conclusion reached at by the Employment and Labour Relations Court that the period between November 20, 2006 and November 19, 2012, could be extended by 210 days and therefore an extension of about 7 months could be made to the limitation period provided for in section 4(1)(a) of the Limitation of Actions Act, did not have any support in law.

Section 39 of the Limitation of Actions Act provided that a period of limitation would not run if there was a contract not to plead limitation or where the person attempting to plead limitation was estopped from doing so. The documents tendered did not disclose the existence of a contract wherein the Appellant could not plead limitation and the Respondent did demonstrate that the Appellant was estopped from pleading limitation.

Appeal allowed. (Ruling dismissing the preliminary objection dated July 9, 2014, set aside. Industrial Cause No 374 of 2013 struck out with costs to the Appellant.)

Extract:

Parties:

Maersk Kenya Ltd v Tsuma

[2017] KLR-CAK

Case Number:

Civil Appeal No 209 of 2015

Coram:

MS Asike- Makhandia, W Ouko & AK Murgor JJ A

Court Station:

Civil Appeal No 209 of 2015

Delivery Date:

November 10, 2017

Case History:

Appeal from Ruling and Order of the Employment and Labour Relations Court at Nairobi (Hellen Wasilwa, J) delivered 25

th

May 2015)

inIndustrial Cause No 374 of 2013

Cases

East Africa

1.

Kasiwa, Mary v Scorpio Enterprises Limited

Cause No 214 of 2013 –(Applied)

2.

Pyman, Keziah Stella

& 2 others v Paul Mwololo

Mutevu & 8 others

Civil Application No Nai 42 of 2013 –(Applied)

3.

Republic v Public Procurement Administrative Review Board & another ex parte Teachers Service Commission

Miscellaneous Application No 17 of 2015 –(Mentioned)

4.

Simel & others v County Council of Narok & others

[1994] KLR 583 –(Explained)

Statutes

East Africa

1.Civil Procedure Rules (cap 21 Sub Leg) order 50 rule 4 –(Interpreted)

2.Civil Procedure Rules (cap 21 Sub Leg) (Repealed) order 49 rule 5–(Interpreted)

3.Employment Act, 2007 (Act No 11 of 2007) section 90–(Interpreted)

4.Interpretation and General Provisions Act (cap 2) sections 23(2); 33

–(Interpreted)

5.Law Reform Act (cap 26) section 9(2)(3)

–(Interpreted)

6.Limitation of Actions Act (cap 22) sections 4(1)(a); 39(1)

–(Interpreted)

7.Penal Code (cap 63) section 275

–(Interpreted)

8.Employment Act (cap 226) (Repealed) In general –(Unconstitutional)

Advocates

1.Mr Mbaluto for the Appellant

2.Mr Kalii for the Respondent



History County:

Nairobi

Case Outcome:

Appeal dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: MAKHANDIA, OUKO & MURGOR, JJ,A)

CIVIL APPEAL NO. 209 OF 2015

BETWEEN

MAERSK KENYA LIMITED..…………....................................…….…...……….APPELLANT

AND

MURABU CHAKA TSUMA.…………......................................….…....…..…..RESPONDENT

(Appeal from Ruling and Order of the Employment and Labour Relations Court at

Nairobi ((Hellen Wasilwa, J.) delivered 25

th

May 2015)

in

Industrial Cause No. 374 of 2013)

*******************************

JUDGMENT OF THE COURT

This appeal is concerned with whether a claim filed by

the respondent,

Murabu Chaka Tsuma

against

the appellant, Maersk Kenya Limited

on 21

st

March 2013 was time barred under the provisions of

section 4 (1) (a)

of the

Limitations of Actions Act Cap 22 Laws of Kenya

or whether time for filing of the claim could be extended by

order 50 rule 4

of the

Civil Procedure Rules

.

As a brief background, by a Statement of Claim filed on 21

st

March 2013, the respondent stated that the appellant employed him as a Security and Safety Coordinator. The respondent’s employment letter specified that the appellant would be entitled to terminate the respondent’s employment without notice if the respondent was found guilty of any conduct that would justify a summary dismissal. On 11

th

September 2005, the respondent was suspended from employment following the institution of investigations into a criminal matter in which he was implicated. On 20

th

September 2006, the respondent was charged in

Criminal Case No 1723 of 2006

with the offence of stealing contrary to

section 275

of the

Penal Code

, and on 20

th

November 2006, he was summarily dismissed from employment. Subsequently, he was cleared of the charges, following which he filed the claim stating that his dismissal was unjust and unwarranted. He also claimed compensation, loss of earnings, two months’ salary in lieu of notice, a Certificate of Service, interest and costs.

The appellant filed a statement of defence wherein it stated that the respondent was summarily dismissed on 20

th

November 2006 for gross misconduct arising from a failure to account for money obtained from the appellant in the sum of US Dollars 2205 and a further amount of Kshs. 497,351.

Before the suit was heard, the appellant filed a preliminary objection on a point of law where it was stated that the respondent’s claim which had been instituted outside the 3 years’ time limit was time barred under

section

90

of the

Employment Ac

t, and as such, ought to be struck out with costs.

The respondent filed grounds of opposition on 7

th

July 2014 where he asserted that his Employment Contract was dated 20

th

September 2005 and therefore it was not subject to the provisions of the Employment Act 2007; that limitation of time should be computed under the Limitation of Actions Act Cap 22, which act specified that the time frame for instituting a cause of action was within a period of six years.

In contemplation of this, the appellant filed another preliminary objection on 9

th

July 2014, this time contending that the respondent’s claim was instituted outside the six year limitation period set out under

section 4 (1)

(a) of the

Limitation of Actions Act

, and for this reason it ought to be struck out with costs.

Relying on the case of

Keziah Stella Pyman & 2 others vs Paul Mwololo

Mutevu & 8 others

[2013] eKLR

where this Court applied

order 50 rule 4

of the

Civil Procedure Rules

to exclude the court’s Christmas recess to extend time for filing of a record of appeal, the Employment and Labour Relations Court ruled that, on the basis of the same order and rule, the period between the 21

st

December in any year and the 13

th

day of January in the year next following (both days included) in each year commencing 20

th

November 2006 to 19

th

November 2012, totaling 210 days, be excluded when computing time for filing of the respondent’s claim. The court concluded,

“…the number of days taken from 19

th

November 2012 pushed the limitation period about 7 months forward to about June 2013”.

The appellant was dissatisfied with the decision of the Employment and Labour Relations Court and appealed to this Court on grounds that the learned judge erred in finding that the claim was not time barred under the provisions of

section 4 (1) (a)

of the

Limitations of Actions Act Cap 22

Laws of Kenya; by holding that time did not run during the Court’s vacation in respect of the computation of time under the Limitation of Actions Act, and in so doing failed to uphold the appellant’s notice of preliminary objection; that the learned judge failed to properly exercise her discretion having regard to the appellant’s submissions and authorities.

Mr. Mbaluto,

learned counsel for the appellant submitted that the claim should have been struck out on the basis of

section 4 (1) (a)

of the

Limitations

of Actions Act

; that according to the Statement of Claim, the cause of action arose on 20

th

November 2006 when the respondent was dismissed from employment due to gross misconduct; that by this time the Employment Act Cap 226 was in force, but did not comprise a period of limitation to file causes of action unlike

section 90

of the present Act; that instead the applicable provision was

section 4 (1) (a)

of the

Limitations of Actions Act

which specified the time limit as six years; that the cause of action was time barred by 19

th

November 2012; that the suit was filed on 21

st

March 2013 which was four months after the limitation period had expired. Counsel cited the cases of

Mary Kasiwa vs Scorpio Enterprises Limited

[2103] eKLR

for the proposition that a claim filed outside the six year period stipulated by the Limitation of Actions Act was time barred.

In counsel’s view, the learned judge misdirected herself when she found that the suit was not time barred by virtue of

order 50 rule 4

of the

Civil

Procedure Rules

whereby during the Court’s Christmas vacation period, time stopped running. Counsel asserted that the Civil Procedure Rules were subsidiary legislation, and

order 50 rule 4

could not override the stipulations of statute. see the Interpretation and General Provisions Act; that the application of

order 50 rule 4

is limited to court orders and has nothing to do with the Limitations of Actions Act.

Mr. Kalii,

learned counsel for the respondent opposed the appeal and argued that

order 50 rule 4

is applicable to the Limitations of Actions Act and that it could not be overridden by

section 4 (1) (a)

of the

Limitation of Action

Act

; that the respondent was entitled to exclude the Court’s vacation period when computing the limitation period. In support of this, counsel relied on

section 23 (2)

of the

Interpretation and General Provisions Act

which provides that where a statute is repealed, a reference by another law to the provisions so repealed, shall unless a contrary intention is expressed, be construed as reference to the provision of the new law; that

section 39 (1) (b)

of the

Limitation of Actions Act

qualifies the running of time where a person is estopped from filing a claim. In this case the respondent was on suspension awaiting the employer’s decision on the fate of his employment, and therefore the employee was misled into relying on the letter from the employer, and as a consequence failed to file his claim within the limitation period. Counsel cited the case of

James Mugera Igati vs Public Service Commission of Kenya

[2014] eKLR

for the position that where the employer advises the employee that he is suspended pending the outcome of police investigations, or a decision of the Criminal Court, then it may be taken that the employer has forfeited the right to steer the disciplinary process, and subordinated the managerial prerogative in disciplining the employee to third parties. Counsel concluded by submitting that the few days delay should not be involved in the prejudice of the respondent, as it was his fundamental right to ventilate his case before the court.

In reply Mr. Mbaluto countered that the issue of estoppel was not canvassed before the lower court.

We have considered the pleadings and the submissions of the parties and are of the view that the question in this appeal turns on whether the learned judge was right in declining to strike out the respondent’s suit for being time barred by virtue of

section 4 (1) (a)

of the

Limitation of Actions Act,

for reasons that

order 50 rule 4

of the

Civil Procedure Rules

provided for exclusion of the court’s Christmas recess every year from 2006 until 2012 from the computation of time so as to extend the limitation period for filing of the claim.

In determining whether the claim filed by the respondent was time barred, it is not in dispute that the cause of action arose on 20

th

November 2006 when the respondent was dismissed from employment. It is also not in dispute that the cause of action arose prior to the enactment of the Employment Act, 2007, so that in computing whether the suit was time barred, the applicable law was

section 4 (1) (a)

of the

Limitation of Actions Act

which provides that actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued.

When six years is computed from when the cause of action arose on 20

th

November 2006, there is no question that the suit ought to have been filed latest before 19

th

November 2012. Instead it was filed four months later on 21

st

March 2013.

However, the learned judge applied

order 50 rule 4

of the

Civil Procedure

Rules

and excluded the Christmas recess period for each year commencing 2006 until 2012, which had the effect of extending limitation time, and in so doing, declined to strike out the suit for reasons that it was not time barred.

The question at this juncture is whether the learned judge rightly applied

order 50 rule 4

of the

Civil Procedure Rules

to hold that the six year period stipulated by the Limitation of Actions Act could be extended in each year from 2006 to 2012 by exclusion of the period between 21

st

December and 13

th

January. In other words, did time stop running in each year from 2006 to 2012 during the period between 21

st

December and 13

th

January thereby extending the time specified by the Limitation of Actions Act for filing of the respondent’s claim? In determining the issue, a consideration of

section 33

of the

Interpretation and General Provisions Act

will be of necessity. It provides;

“An act shall be deemed to be done under an Act by virtue of the powers conferred by an Act or in pursuance or execution of the powers of or under the authority of an Act, it is done under or by virtue of or in pursuance of subsidiary legislation made under a power contained in that Act.”

The Civil Procedure Rules have been made pursuant to the provisions of the Civil Procedure Act. Under the rules, the court is empowered to enlarge time for doing any act or admitting any proceedings under the rules or where the court has itself specified the time limit.

More specifically,

Order 50 rule 4

upon which this appeal turns, is concerned with computation of time in relation to the court’s Christmas recess. It stipulates;

“Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleadings or the doing of any other act:

Provided that this rule shall not apply to any application in respect of a temporary injunction.”

In the case of the

Republic vs. Public Procurement Administrative Review Board & another exparte Teachers Service Commission

[2015] eKLR

the High court cited the case of

Mokombo Ole Simel & Others vs. County Council of Narok & Others

Nairobi HCMA No. 361 of 1994

which concerned similar circumstances. There, the High Court considered whether

order 49 rule 5

of the repealed Civil Procedure Rules was capable of enlarging time specified by

section 9(2) and (3) of the Law Reform Act,

and succinctly expressed itself thus;

“If the limited time is prescribed under the Civil Procedure Rules or by an order of the court or by summary notice, the court could enlarge the period. But here the absolute period of six months has been laid down by a different statute namely the Law Reform Act. Order 49 rule 5 of the Civil Procedure Rules cannot be invoked to supersede the express provisions of the Act...Order 49 rule 3A is similarly a piece of delegated legislation and cannot have the effect of amending the express provisions of section 9(2) and (3) of the Act. The said provisions can only be altered or amended by an Act of the Parliament...”

We respectfully adopt those observations for the purposes of this case.

Order 50 rule 4

makes it clear that the rule applies specifically to computing time under the Civil Procedure Rules, or in accordance with an order of the court. Nothing in the rule shows that it was intended to be applied to the time limits fixed by the Limitation of Actions Act, which is a different act from the Civil Procedure Act and the rules. The decision in

Keziah Stella Pyman & 2 others vs Paul Mwololo Mutevu & 8 others (supra),

which was relied on by the learned judge concerned an application for extension of time to file a record of appeal under the rules. Unlike the circumstances of the instant case, that decision did not concern, or make any reference to the Limitation of Actions Act.

Conversely, we have closely examined the Limitation of Actions Act. The limitation period in question has been specified by

section 4 (1) (a)

of the

Limitation of Actions Act

, and by virtue of

section 31,

in

Part III

of the Act, which is headed “extension of the period of limitation” the manner and circumstances have been set out in which the periods of limitation specified by the Act can be extended. No reference has been made under Part III to the Civil Procedure Rules or indeed to

order 50 rule 4

so as to enable time to be computed in the manner particularized thereunder. And without such enabling powers, an order or rule is incapable of augmenting the absolute period of limitation stipulated by an Act of Parliament. Consequently, the conclusion reached by the learned judge that the period between 20

th

November 2006 to 19

th

November 2012 in each year totaling 210 days could be excluded from the period of six years stipulated by

section 4 (1) (a)

so as to extend the period by about 7 months to June 2013, did not have any support in law, and in our view amounted to a misdirection.

Finally, on the issue of estoppel, though we consider it to be an afterthought, for the sake of completeness, we will proceed to dispense with it. Counsel for the respondent submitted that the appellant was estopped from pleading limitation under

section 39

of the

Limitation of Actions Act

for having failed to communicate the outcome of the investigations following the respondent’s suspension from employment on 11

th

September 2006.

Section 39

of the

Limitation of Actions Act

provides that a period of limitation does not run if (a) there is a contract not to plead limitation or (b) that the person attempting to plead limitation is estopped from so doing.

We have considered the materials placed before the court and find that they do not disclose any contract made by the appellant stating that it would not plead limitation, and the respondent has not demonstrated in any way how the appellant was estopped from pleading limitation, more particularly as it is not in dispute that the respondent was dismissed from employment on 20

th

November 2006. Following his dismissal, nothing precluded him from filing a claim for compensation and loss of earnings within the stipulated period. In our view, the respondent slept on his rights, and equity does not come to the aid of the indolent.

In view of the reasons aforestated, we are satisfied that the learned judge fell into error in applying

order 50 rule 4

to the provisions of the Limitation of Actions Act to extend time for filing of the respondent’s claim, and we must therefore interfere with that decision.

As such, we allow the appeal, set aside the ruling of the lower court dismissing the appellant’s preliminary objection dated 9

th

July 2014, with the result that the respondent’s suit being Industrial Cause No. 374 of 2013 is hereby struck out with costs to the appellant. The appellant shall also have the cost of this appeal.

It is so ordered.

Dated and delivered at Nairobi this 10

th

day of November, 2017.

ASIKE-MAKHANDIA

…………………………………..

JUDGE OF APPEAL

W. OUKO

………………………..………..

JUDGE OF APPEAL

A. K. MURGOR

………………………..………..

JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR